62d Congress, ) SENATE. \ Document 

Ifit Session. i ( No. 6. 



IN THE SUPREME COURT OF THE STATE OF OREGON. 



FRANK KIEMAN, APPELLANT, v. CITY OF PORTLAND ET AL., 
RESPONDENTS. PETITION FOR REHEARING DENIED BY JUDGE 
KING. 



Presented by Mr. Brown. 



April 6, 1911.— Ordered to be printed. 



IN THE SUPREME COURT OF THE STATE OF OREGON. 



Frank Kieman, appellant, v. City of Portland et al., 

RESPONDENTS. 

APPEAL FROM THE CIRCUIT COURT OF MULTNOMAH COUNTY, HON. 
GEORGE H. BURNETT, JUDGE. — ON PETITION FOR REHEARING. 

(For former opinions see HI Pacific, 379, 382.) 

Ralph R. Duniway, Attorney for Appellant. 
Frank S. Grant, City Attorney. 
W. C. Benbow, Deputy City Attorney. 

C. W. Fulton, M. L. Pipes, and H. H. Riddell, Attorneys jor 
Respondents. 

King, J. Denied. 

Filed December 31, 1910; J. C. Moreland, Clerk of the Supreme 
Court. 

King, J. The principal point suggested by the petition for re- 
hearing is the contention that the people of Oregon have no power, 
by constitutional provision or otherwise, to deprive the legislature 
of the sovereign power to enact, amend, or repeal any charter or act 
of incorporation for any city or town, and any attempt so to do is 
void. The constitutional provisions amending Article XI, adopted 
in June, 1906, known as the charter amendments, are as follows: 

Section 1 a The referendum may be demanded by the people against one or more 
items, sections, or parts of any act of the legislative assembly m the same manner in 
which such power may be exercised against a complete act. The filing ot a reteren- 
dum petition against one or more items, sections, or parts of an act shall not delay tlie 
remainder of that act from becoming operative . The initiative and referendum powers 
reserved to the people by this constitution are hereby further reserved to_ the legal 
voters of every municipality and district, as to all local, special, and municipal legis- 



2 IN THE SUPREME COUET OF THE STATE OP OEEGON. 

lation, of every character, in or for their respective municipalities and districts. The 
manner of exercising said powers shall be prescribed by general laws, except that 
cities and towns may provide for the manner of exercising the initiative and referen- 
dum powers as to their municipal legislation. Not more than ten per cent of the legal 
voters may be required to order the referendum, nor more than fifteen per cent to pro- 
pose any measure, by the initiative, in any city or town. 

Sec. 2. Corporations may be formed under general laws, but shall not be created by 
the legislative assembly by special laws. The legislative assembly shall not enact, 
amend, or repeal any charter or act of incorporation for any municipality, city, or town. 
The legal voters of every city and town are hereby granted power to enact and amend 
their municipal charter, subject to the constitution and criminal laws of Oregon. 

It will be observed from the first sentence in section 2 that no 
restriction is placed upon the legislature with respect to the enact- 
ment of general laws, the exception being that no special laws 
creating or affecting the municipahties shall be enacted by the legis- 
lature. Under all the rules of construction tliis exception reserves 
to the legislative department the right, whether by the people 
directly through the initiative or indirectly through the legislature, 
to enact general laws upon the subject, making it clear that the 
inhibition in the next sentence has reference to special laws. 

In Farrell v. Port of Portland (52 Oreg., 582, 586) it is held that 
the initiative amendments to the constitution bearing upon the 
creation and government of municipahties, including section 1 of 
Article XI, must be construed together. In considering the effect 
of section 2, Article XI, it is there said: 

But this section and the language used in it should not be construed alone. It is 
a part of the initiative and referendum scheme first inaugui-ated by the amendment 
of 1902 and subsequently enlarged and extended by the amendments of 1906. All 
these amendments, so far as they refer to the same subject matter, should be read 
together, and be so interpreted as to carry out the purpose of the people in adopting 
them, regardless of .the technical construction of some of the language used. 

Since the above is the rule regarding the various amendments 
taken as a whole, much stronger must be the reason for reading and 
construing together all the sentences in the one section, from which 
it is obvious that the only restriction placed upon the legislature by 
section 2 pertains to the passage of special laws affecting municipali- 
ties. These agencies of the State are thereby enabled to enact such 
local measures, to revise existing local laws, and to exercise their 
powers affecting them, and thus carry out their general scope and 
purpose, so long as they are not inconsistent with the constitution of 
the State or of the United States, and are in harmony with all the 
special laws and general laws of the State constitutionall}?^ enacted. 
(Straw V. Harris, 54 Oreg., 424, 443.) The language following the 
above excerpts from page 587 of the opinion in Farrell v. Port of 
Portland, concerning tJie limitations placed by the amendment upon 
the legislature, must be interpreted in the light of the questions 
there under consideration, from which it is manifest reference was 
had only to special laws affecting municipalities. The so termed 
"general initiative and referendum scheme" there alluded to, and 
whether it is in violation of this provision of the Federal Constitution, 
is fully considered and determined adversely to petitioner's conten- 
tion in Kadderly -y. Portland (44 Oreg., 118), and States. Pacific States 
Tel. & Tel. Co. (53 Oreg., 163), and there held to be not in conflict or 
inconsistent therewith. Other cases impliedly, if not expressly, sus- 
taining this position are : Farrell v. Port of Portland (52 Oreg., 582); 
Straws. Harris (54 Oreg. ,424); Hainev.Cityof Forest Grove (54 Oreg,, 
443); State v. Langworthy ((Oreg.), 104 Pac, 424). 



IN THE SUPREME COURT OP THE STATE OF OREGON. 3 

The question, however, as to whether the people may, by consti- 
tutional amendment, reserve to themselves the right to enact any 
law to the exclusion of the legislature, and by such method delegate 
to municipalities powers not subject to abridgment, change, limita- 
tion, or recall by special acts of the legislative assembly, was not 
directly involved in any of the cases above cited. It would seem, 
however, that the views and conclusions reached in the decisions 
named necessarily dispose of this feature, but since counsel for peti- 
tioner insists that such disposal has not been made, and presents his 
contention in good faith, we will, at the possible expense of repetition 
of views announced in the above cases, consider the points thus pre- 
sented. To begin: Article IV, section 4, of the United States Con- 
stitution reads: 

The United States shall guarantee to every State in this Union a republican form 
of government, and shall protect each of them against invasion; and on application 
of the legislature, or of the executive (when the legislature can not be convened), 
against domestic violence. 

In Luther v. Borden (7 How., 1, 48) the court observes: 

Moreover, the Constitution of the United States, as far as it has provided for an 
emergency of this kind and authorized the General Government to interfere in the 
domestic concerns of a State, has treated the subject as political in its nature, and 
placed the power in the hands of that department. 

The fourth section of the fourth article of the Constitution of the United States 
provides that the United States shall guarantee to every State in the Union a repub- 
lican form of government, and shall protect each of them against invasion; and on the 
application of the legislature, or of the executive (when the legislature can not be 
convened), against domestic violence. 

Under this article of the Constitution it rests with Congress to decide what govern- 
ment is the established one in a State. For, as the United States guarantee to each 
State a republican government, Congress must necessarily decide what government 
is established in the State before it can determine whether it is republican or not. 
And when the Senators and Representatives of a State are admitted into the councils 
of the Union, the authority of the government under which they are appointed, as 
well as its republican character, is recognized by the proper constitutional authority. 
And its decision is binding on every other department of the Government, and could 
not be questioned in a judicial tribunal. 

See also Cooley Const. Lim. (6 ed.), pp. 42, 45; Texas v. White 
(7 Wall. (U. S.), 700, 730); Marshall v. Beckham (178 U. S., 548); 
and 6 Mich. Law Review, 304, where authorities sustaining the above 
view are collated. We have an illustration of the principles announced 
in Luther v. Borden, in the admission of Oklahoma as a State. Before 
its statehood was recognized Oklahoma had adopted, as a part of 
its constitution, the initiative and referendum law-making system, 
patterned after the Oregon plan ; regardless of which its Senators and 
Representatives were "admitted into the councils of the Union," 
and "the authority of the Government under which they were ap- 
pointed, as well as its republican character, is recognized by the proper 
constitutional authority," thus determining that State, with its 
comparatively new legislative system, to be republican in form. 
This recent historical precedent should, in itself, be adequate to 
set at rest the temporarily mooted question in hand. 

This court, however, has heretofore taken jurisdiction of cases of 
this character (Kadderly v. Portland, 44 Oreg., 118; State v. Cochrane 
(Oreg.), 105 Pac, 884), and, owing to the importance of the points pre- 
sented, we will proceed to a consideration thereof. To ascertain 
whether taking from the legislature and delegating to the municipali- 
ties, or to the localities affected, local self-government, or a right to 



4 IlSr THE SUPREME COUET OF THE STATE OF OEEGON. 

enact, maintain, and alter their charters as the legislature formerly 
did, and whether the taking from the legislature the right to make 
special laws upon the subject violates this provision of the national 
Constitution, makes it important that we first ascertain what is meant 
by a republican form of government. It is an expression which all 
assume to understand, yet, judging from the many unsuccessful 
attempts of eminent statesmen and writers to give it a clear meaning, 
it would seem the phrase is not susceptible to being given a precise 
definition. Especially is this true when sought to be applied to the 
constitution of different States, concerning which Mr. James Madison, 
a member of the Constitutional Convention, said : 

* * * If we resort for a criterion to the different principles on which different 
forms of gOA'ernment are established, we may define a republic to be, or may at least 
bestow that name on a government which derives all its powers directly or indi- 
rectly from the great body of the people and is administered by persons holding their 
offices during pleasure for a limited period or during good behavior. It is essential 
to such government that it be derived from the great body of society and not from 
any inconsiderable portion or a favored class of it. * * * (The Federali-st, 
Hamilton Ed., Paper 39, p. 301.) 

Another and more pointed definition appears in Chisholm v. 
Georgia (2 Dall. (U. S.), 419, 457) by Mr. Justice Wilson, a member 
of the Constitutional Convention, who, but a short time after the 
adoption of the Federal Constitution, in adverting to what is meant 
by a republican form of government, remarked: "As a citizen, I 
know the government of that State (Georgia) to be republican, and 
my short definition of such a government — one constructed on this 
principle, that the supreme power resides in the body of the people." 
From which it follows that the converse must be true; that is to 
say, an}^ government in which the supreme power resides with the 
people is republican in form. See also Mr. Justice Wilson's remarks 
to the same effect, reported in Elliot's Debates (vol. 5, 160). 

Measured in the light of the above it is difficult to conceive of any 
system of lawmaking coming nearer to the great body of the people of 
the entire State, or by those comprising the various municipalities, 
than that now in use here, and being so we are at a loss to understand 
how the adoption and use of this system can be lield a departure from 
a republican form of government. It was to escape the oppression 
resulting from governments controlled by the select few, so often ruling 
under the assumption that "might makes right," that gave birth to 
republics. Monarchical rulers refuse to recognize their accountabihty 
to the people governed by them. In a republic the converse is the 
rule; the tenure of office may be for a short or a long period, or even 
for life, yet those in office are at all times answerable, either directly 
or indirectly, to the people, and in proportion to their responsibility 
to those for whom they may be the public agents, and the nearer the 
power to enact laws and control public servants lies with the great 
body of the people, the more nearly does a government take unto itself 
the form of a republic — not in name alone, but in fact. From this it 
follows that each repubhc may differ in its political system, or in the 
political machinery by which it moves, but so long as the ultimate 
control of its officials and affairs of state remain in its citizens it will, 
in the eye of all republics, be recognized as a government of that class. 
Of this we have many examples in Central and South America. 

It becomes, then, a matter of degree, an(i the fear manifested by the 
briefs filed in this case would seem to indicate, not that we are drifting 



IN THE SUPREME COURT OF THE STATE OF OREGON. 5 

from the secure moorings of a republic, but that our State, by the 
direct system of legislation complained of, is becoming too democratic, 
advancing too rapidly toward a republic pure in form. This, it is true, 
counsel for petitioner does not concede, but under any interpretation 
of which the term is capable, or from any view thus far found ex- 
pressed in the writings of the prominent statesmen who were mem- 
bers of the Constitutional Convention, or who figured in the early 
upbuilding of the Nation, it follows that the system here assailed 
brings us nearer to a state republican in form than before its adoption. 
Mr. Thomas Jefferson, in 1816, when discussing the term republic, 
defined and illustrated his view thereof as follows : 

Indeed, it must be acknowledged that the term republic is of very vague applica- 
tion in every language. Witness the self-styled republics of Holland, Switzerland, 
Genoa, Venice, Poland. Were I to assign to this term a precise and definite idea, 
I would say, purely and simply, it means a government by its citizens in mass, acting 
directly and not personally, according to rules established by the majority; and that 
every other government ig more or less republican in proportion as it has in its com- 
position more or less of tbP ingredient of the direct action of the citizens. (Writings of 
Thoilias Jefferson, vol. 15, p. 19.) 

It is well known that at the time of the adoption of the Federal 
Constitution there existed in some of the Atlantic States a system 
of local government, known as New England towns, in which the peo- 
ple had the right to legislate upon various matters, the masses assem- 
bling at stated periods for that purpose, all of which was within the 
knowledge of those composing the Constitutional Convention. After 
observing that a tAie republic, under his definition, would necessarily 
be restrained to narrow limits, such as in a New England township, 
and that the next step in use at that time was through the represent- 
ative system, Mr. Jefferson pointed out that the further the officials 
of State or Nation are separated from the masses, proportionately 
less does such state or government retain the elements of a republic, 
and on page 23 concludes : 

On this view of the import of the term republic, instead of saying, as has been said, 
that it may mean anything or nothing, we may say with truth and meaning, that gov- 
ernments are more or less republican as they have more or less of the element of popu- 
lar election and control in their composition; and believing, as I do, that the mass of 
the citizens is the safest depository of their own rights and especially that the evils 
flowing from the duperies of the people are less injm-ious than those from the egoism 
of their agents, I am a friend to that composition of government which has in it the 
most of this ingredient. 

The observations quoted are in full accord with the recorded views 
of all the writers and statesmen of that time, when the intention of 
the framers of our National Constitution was fully understood; in 
the light of which it seems inconceivable that a State, merely because 
it may evolve a system by which its citizens become a branch of its 
legislative department coordinate with their representatives in the 
legislature, loses cast as a Kepublic. The extent to which a legisla- 
ture of any State may enact laws is, and always has been, one of 
degree, depending upon the limitations prescribed by its constitution ; 
some constitutions having few and otliers many limitations. But 
in all States, whatever may be the restriction placed upon their rep- 
resentatives, the people, either by constitutional amendment or by 
convention called for that purpose, have had and have the power to 
directly legislate and to change all or any laws so far as deemed proper, 



6 IN THE SUPREME COURT OF THE STATE OF OREGOIST. 

limited only by clear inhibitions of the National Constitution. (Cooley, 
Const. Lim. (6 ed.), 44.) 

An examination of our State constitution as first adopted discloses 
many restrictions upon the lawmaking department, among which is 
a provision to the effect that no amendment thereto should be sub- 
mitted to the people for ratification until after it passed two suc- 
cessive sessions of the legislature. In course of time an amendment 
under this provision was legally submitted and adopted by a majority 
vote of the people by which the people reserved the right to change 
the constitution or any part thereof without awaiting this legislative 
formality, the validity of which is not open to doubt. Is it not pos- 
sible, indeed is it not practicable, then, for the people further to 
restrict the power of their representatives to legislate upon matters 
of public mterest, and in so doing are they not, and even under the 
old system were they not, directly legislating ? This system of direct 
legislation has been in common use throughout the various State gov- 
ernments since their inception, but until the adoption of the initiative 
and referendum amendments no one was heard to assert that an 
amendment to the constitution of a State, merely because of depriving 
the legislature of some lawmaking power or powers held by it at the 
adoption of the National Constitution, was void on the ground of being 
inconsistent with a republican form of government. 

The absurdity of such a contention, if made, would at once be 
obvious. But, viewed fl'om any standpoint, such is the logical 
sequence of appellant's contention to the effect that because the 
people have, by constitutional amendment, reserved the exclusive 
right to enact special laws concerning municipalities, and by consti- 
tutional amendment have delegated to municipal corporations the 
right to exercise such powers as before were only within the province 
of their representatives, through the legislature, to delegate, violates 
the provision of the Federal Constitution guaranteeing to our State 
a republican form of government. In other words it is argued that 
the right of the city of Portland to legislate upon matters of municipal 
concern, to provide for the exercise of its right of eminent domain, 
to build bridges, etc., would be in harmony with the above provision 
of the Federal Constitution, if delegated by the people through their 
representatives, but not so if done directly by them through the 
initiative.' In brief, the effect of this argument is that the people 
may legally do indirectly, by the mere enactment of a law, what 
they can not do directly by constitutional amendment. The state- 
ment of this contention should be sufficient for its answer. 

We held in Straw v. Harris (54 Oreg., 424) that a State could not by 
amendment of its fundamental laws or otherwise, except in the man- 
ner provided in section 3, Article IV, of the Federal Constitution, 
delegate to any municipality or subdivision of the State prerogatives 
not subject to recall; that so to do would, in effect, be the creation of 
a State within a State, and that, so long as the legislature is not pre- 
cluded by the Constitution from enacting general laws affecting them, 
it may by that method amend, modify, or even abohsh municipal cor- 
porations, and that even should tliis power be removed from the legis- 
lature there must remain with the people a right to do so, if not by 
enacting a law to that effect then by the former system of direct 
legislation, consisting in the adoption of amendments to the consti- 



IN" THE SUPREME COURT OF THE STATE OF OREGON". 7 

tution, known as the fundamental laws of the State, and that tliis 
right of State government to retain control of these agencies and 
departments of State can not be surrendered, but must always 
remain somewhere within the reach of that source of all power, the 
people. We held, and still hold to this view, not on the ground that 
to hold otherwise would be destructive of a repubhcan form of govern- 
ment, but because to do so would in effect permit a State within a 
State and accordingly violate section 3, Article IV, of the Federal 
Constitution, the first paragraph of which reads : 

New States may be admitted by the Congress into this Union; but no new State 
shall be formed or erected within the jurisdiction of any other State; nor any State be 
formed by the junction of two or more States, or parts of States, without the consent of 
the legislatures of the States concerned, as well as of the Congress. 

Suppose our lawmaking department should pass an ex post facto 
act, or a bill of attainder, such purported laws would be void, not 
because of being subversive of a republican form of government, but 
by reason of some express inhibition against legislation of that char- 
acter contained in another section of the Federal Constitution. If 
the' National Constitution permitted or provided for the creation of 
a State within a State, could it be said that by reason thereof the 
State thus created would be unrepublican in form ? Under section 
3 of Article IV, above quoted, States may be divided and new ones 
created, the limitation being that no State shall be created within 
a State, but the creation of new States under that section has never 
been considered an unrepublican step. Should our State attempt 
to surrender its powers to an executive for life, with the provision 
that upon his death his authority should pass by entailed inheritance 
to his son or other relative, and at the same time, by constitutional 
change or otherwise, further surrender any right to alter the system, 
except with the consent of such executive, it would lose its republi- 
can form, and in effect become a local monarchy within the Union, 
thereby furnishing an example of a violation of section 4, Article IV, 
of the Federal Constitution. But, so long as the people retain the 
power within themselves to conduct and manage the affairs of state — 
either directly or indirectly — a republican form of government is 
maintained, and comes within the provision of the Federal Constitu- 
tion guaranteeing the same, being circumscribed in its powers only 
by the provisions of such Constitution. 

The effect of petitioner's contention is that any attempt on the 
part of the State to enact and enforce a law which may be in conflict 
with any provision of the National Constitution is not void because 
in conflict or inconsistent with the special provision violated, but 
because it deprives the State of its republican form of government; 
and this seems to be the character of reasoning adopted by the 
majority in People v. Johnson (34 Colo., 143), to which we are cited 
as sustaining petitioner's view. In that case the question was 
whether the consolidation of the city and county of Denver, the 
boundaries of which v/ere made coterminous, abolished the city gov- 
ernment, as distinguished from county government, therebv giving 
to such organization home rule to the extent of 'permitting it to do 
as the constitutional amendment of 1902 provided might be done — 
enact all local laws and elect such officers at such times as deemed 
advisable, concerning which it was held by the majority that the 



8 IN THE SUPEEME COUET OF THE STATE OF OEEGON. 

city and county governments, although covering the same territory, 
remained separate and distinct, requiring different officers to be 
selected for each, and in a different manner, as before the change. 

The reason for the conclusion appears to be on account of other 
provisions in the constitution of Colorado, the majority not recog- 
nizing the rule, invoked without exception in all other jurisdictions, 
including ours, that constitutions with amendments must be con- 
strued as a whole, and that when two constructions are possible, 
one of which takes away the meaning of a section, and another giving 
effect to all the provisions, the latter must prevail. (State v. Coch- 
ran, Oreg., 105 Pac, 884; Farrell ?;. Port of Portland, 52 Oreg., 582.) 
In an able and exhaustive dissenting opinion in that case by Mr. 
Justice Steele, concurred in by IVIr. Justice Gunter, it is made clear 
that a Federal question (such as here presented) was not involved; 
that the 1902 amendment of Colorado's constitution was not incon- 
sistent with section 4, Article IV, of the Federal Constitution. After 
demonstrating that the conclusion announced by the majority "over- 
looks the fundamental rule in the construction of constitutions and 
statutes that a special provision controls the general one and that 
both may stand * * *'' (34 Colo., 189), at the close of his opinion 
(p. 193) it is observed: 

Wherever the question has been presented the courts have given effect to the 
wishes of the people and sustained the power to establish the form of government 
bere provided as not being in violation of the Federal Constitution and not in excess 
of the powers of the people to so provide in their organic law. And it is to be regretted 
that this court felt in duty bound to undo the work of the charter convention and to 
deny the people of this city and county the right to provide for a simple and econom- 
ical plan of government as directed by the constitution. 

Our holding is that the State may, by constitutional provisions, 
directly delegate to municipalities any powers which it, through the 
legislature, could formerly have granted indirectly. All the preroga- 
tives attempted to be exercised by Portland in the construction of the 
Broadway Bridge formerly could have been granted by the legislature, 
and the power to provide therefor, having been delegated to the city 
by amendment to our organic laws, is valid, and the right to exercise 
such powers will continue until such time as changed by general 
enactments of the lawmaking department of our State, provision for 
which may be made by the legislature by general laws, applying alike 
to all municipalities of that class, or by the people through the ini- 
tiative, by the enactment of either general or special laws on the 
subject. (Cooley Const. Lim. (6 ed.), 41, 45; Hopkins v. Duluth, 81 
Mum., 189; In re Pfahler, 150 Cal., 71; Ex parte Wagner, 21 Okla., 
33; State v. Field, 99 Mo., 352; Kansas v. Marsh, 140 Mo., 458; 
Kadderly v. Portland, 44 Oreg., 118; State v. Pacific States Tel. & 
Tel. Co., 53 Oreg., 163; Straw v. Harris, 54 Oreg., 424; Hownestine v. 
City of McMinnville (Oreg.), 109 Pac, 81.) 

In a public address prepared by Hon. Frederick V. Holman, 
attached to and filed as an appendix to petitioner's brief, it is argued 
that our previous holding in Hall v. Dunn (52 Oreg., 475) and Straw v. 
Harris (54 Oreg., 424), to the effect that we have but one lawmaking 
department, composed of two separate and distinct lawmaking 
bodies: (1) The people, acting directly through the initiative, and 
(2) the people acting indirectly through the legislature; either of 
which, in a manner provided by law, may undo the work of the other, 



IlSr THE SUPREME COURT OF THE STATE OF OREGON. 9 

and necessarily must lead to disastrous results, etc., in that an act 
passed by the first may, immediately on the convening of the legis- 
lature, be repealed, and one enacted by the legislative assembly may 
also be rescinded through either the initiative or the referendum. 
But that objection apphes only to the question of expediency, with 
regard to which the lawmakers and not the courts are concerned. It 
might not be inappropriate, however, to observe that the same objec- 
tion may, with equal force, apply to all legislative bodies. Our legis- 
lature to convene next week can, if it so chooses, repeal all the laws 
(not included in constitutional amendments) enacted at the recent 
November election, and also undo the work of the last legislative 
assembly. Again, two years later, or earlier, a special session of the 
legislature might be called and enact many laws, and the day follow- 
ing its adjournment the newly elected legislature could be convened 
and repeal all the laws going into effect the preceding day. The same 
may also be said of Congress; but this is seldom, if ever, urged as an 
argument against a representative system or alluded to as indicating 
that our Government is becoming unrepublican in form. 

In the appendix mentioned it is observed that under our system, 
as interpreted by this court, we have four legislative bodies in place 
of two: (1) The legislature; (2) the people of the whole State; (3) the 
people of a municipality; (4) the common council or commissioners. 
This suggestion, however, overlooks the fact that in the above-cited 
cases advertence was made only to legal departments of the State, 
and not to municipal or other minor and quasi-legislative bodies. 
The fallacy of this illustration (like many others to which our atten- 
tion is directed, and which will not be specifically discussed) is obvious. 

The observation to the effect that, under the interpretation given 
by this court to the. charter amendments, cities may invade the 
domain of State legislation to the extent, if desired, of condemning 
State property (such as capitol buildings, etc.), has no justification, 
either in the language of the charter amendments, or in anything 
said in any opinion of this court in interpreting such amendments. 

Many of the statements in our former opinions, bearing uf)on 
points here presented, are adverted to as dictum, and like contention 
is also made respecting our holding in the case at hand, to the effect 
that it is unnecessary to obtain the consent of the port of Portland 
before the bridge in question may be constructed. The points 
decided, determining the status of the port of Portland in the mat- 
ter, were all forcibly presented in the briefs and at the oral argu- 
ment, and the effect of the conclusion reached by this court was 
that, taking either horn of the dilemma, appellant's position is 
untenable. It can not, therefore, be said that our views upon 
either point are dicta, and the same may be remarked of much, if 
not all, of the numerous like references to previous adjudications 
by this court (as in Straw v. Harris and other cases), in which the 
views alluded to as dicta hold adversely to the wishes and conten- 
tion of the writers of petitioner's brief and the appendix thereto. 
On what is dicta and the effect thereof, see Kirbv v. Boyette (118 
N. C, 244, 254); Buchner v. C. M. & N. W. Ry. Co. (60 Wis., 264); 
Kane v. McCown (55 Mo., 181); Ocean Beach Ass'n v. Brinlev 
(34 N-. J. Eq., 438); 26 Am. Eng. Ency. L., 165, 171; Florida Cent. 
Ry. Co. V. Schutte (103 U. S., 118, 143). The terms "obiter dicta," 



10 IN THE SUPREME COURT OP THE STATE OP OEEGON. 

"dictum/' etc., like the phrase ''technicalities of the law/' are too 
often invoked by counsel to express disapprobation of some propo- 
sition of law militating against their contention. 

Numerous other points are presented, upon which the views of 
this court are requested. Some of them, however, were disposed of 
in our former opinions herein, to which we still adhere, and those 
remaining, even though not specifically adverted to, are included in 
the above considerations. 

The petition for rehearing is denied. 

O 



